Brown v. State

741 S.W.2d 453, 1987 Tex. Crim. App. LEXIS 727, 1987 WL 2318

• Court: Court of Criminal Appeals of Texas
• Decided: December 9, 1987
• Docket: 861-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW *

McCORMICK, Judge.

Appellant was tried and convicted before a jury in Dallas County for the crime of involuntary manslaughter. V.T.C.A., Penal Code, Section 19.05. Appellant’s punishment was set by the jury at a term of ten years’ confinement in the Texas Department of Corrections.

In his sole ground for review to this Court, appellant generally contends that “[t]he trial court committed error in overruling appellant’s offer of the admission of relevant evidence at the punishment stage of the trial in violation of Tex.Code Crim. Proc.Ann. 37.07 (1965).” More particularly, appellant asserts that proffered testimony of the probation officer of the trial court relating to the operation of the probation department as well as the rules and regulations concerning the conduct of a probationer should have been admitted before the jury to establish the manner in which a probationer is supervised on the manner in which he may have his probation revoked. Appellant contended in the Court of Appeals that such evidence was admissible in mitigation of punishment. In overruling appellant’s ground of error, the Court of Appeals held:

“Factors that can be introduced in mitigation of punishment are those that have a relationship to the circumstances of the offense or to the defendant before or at the time of the offense. Factors which arise after the offense and independently of the defendant are properly excluded. Stiehl v. State, 585 S.W.2d 716, 718 (Tex.Crim.App.1979), cert. denied, 449 U.S. 1114 [101 S.Ct. 926, 66 L.Ed.2d 843] (1981). We hold that evidence of the supervision and revocation procedures of probation was independent of appellant and his conduct and was therefore properly excluded.” Brown v. State, 674 S.W.2d 443 (Tex.App.—Dallas 1984). (Emphasis Supplied).

Appellant’s petition was granted to review that holding.

The sufficiency of the evidence is not questioned. A vehicle driven by appellant struck and killed a Dallas police officer who was investigating an accident which occurred on a Dallas freeway. The evidence showed that appellant was intoxicated at the time his vehicle struck the officer.

At trial, the testimony of Linda Robles, the probation officer, was offered. She would have testified as to the terms and conditions which may be imposed on probationers and the manner in which probation may be revoked. She would also have testified that there are alcohol and drug programs administered by the probation office which appellant could have been ordered to participate in as a condition of his probation; and that “intensive probation” programs are in effect which would involve a greater degree of supervision for the appellant if the court so ordered.

Appellant contends that this evidence is admissible under Article 37.07, supra, because it is relevant to the appellant’s request for probation. The appellant, also maintains that this evidence is a mitigating factor which the jury should have considered before imposing punishment.

Article 37.07(3)(a), supra, reads as follows:

“Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty

“(a) Regardless of the plea and whether punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred pri- or to trial, or any final conviction material to the offense charged.”

In the case before us, the State maintains that the evidence offered does not relate to the offense itself or the appellant himself before or at the time of the offense. The State maintains that the evidence involves factors which are independent of the appellant and are thus inadmissible. The appellant on the other hand cites this Court to the cases of Allaben v. State, 418 S.W.2d 517, 519 (Tex.Cr.App.1967); Thomas v. State, 638 S.W.2d 481 (Tex.Cr.App.1982), and Stiehl v. State, 585 S.W.2d 716, 718 (Tex.Cr.App.1979).

This Court has previously settled this issue in the case of Logan v. State, 455 S.W.2d 267, 269-270 (Tex.Cr.App.1970). See also, Daniel v. State, 577 S.W.2d 231, 235 (Tex.Cr.App.1979), and Levingston v. State, 651 S.W.2d 319, 324 (Tex.App—Dallas, 1983).

In Logan, supra, the defense attorney sought to introduce testimony from a probation officer concerning the purpose of probation and the characteristics which made an applicant for probation a favorable candidate. The trial court refused to allow the testimony and this Court held that no error was committed by this refusal. This Court noted that the jury received an instruction that the court was required to grant probation if the jury recommended it. The court also instructed the jury that if probation was granted the court was required to impose certain statutory conditions. The court then specified those conditions set out in Article 42.12, Y.A.C.C.P. Furthermore, this Court found that the purpose and requisites of probation are matters of law and common knowledge. Although the statutes have been amended as correctly noted in Judge Clinton’s dissenting opinion, we find the reasoning in Logan still viable.

The appellant in this case had the benefit of a jury instruction setting forth the applicable law and possible conditions of probation. Among the conditions listed were the requirements that appellant report to the probation officer as directed, that he could be ordered to avoid injurious or vicious habits and that he he ordered to pay restitution.

We do not perceive the proffered testimony of Ms. Robles to have had any relationship to mitigation of punishment, but was instead a recitation of the law applicable to probation.

In every way relevant to the issue before us the facts and circumstances of the appellant’s case are identical to those in Logan, supra. So, too, is our reasoning. The instruction given the jury on this issue contained all the law necessary for the jury to make its decision regarding appellant’s request for probation. To admit this testimony would make it logically consistent to admit testimony offered by the State concerning the administrative procedures and rehabilitative programs practiced by the Texas Department of Corrections. The logical and inevitable result of this would be to allow an escalating “battle of the experts” to develop during the punishment phase of the trial. Whatever probative value this testimony would have is far outweighed by the danger that it would prejudice or confuse the trier of fact.

We hold that there was no error in the trial court’s refusal to admit this testimony. We, therefore, overrule the appellant’s ground for review and affirm the judgment of the Court of Appeals.